State v. Allman

IN THE SUPREME COURT OF NORTH CAROLINA

No. 25A16

Filed 21 December 2016

STATE OF NORTH CAROLINA

v.
BRITTANY TAYLOR ALLMAN

Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of a divided panel of

the Court of Appeals, ___ N.C. App. ___, 781 S.E.2d 311 (2016), affirming an order

entered on 2 October 2014 by Judge Jack Jenkins in Superior Court, New Hanover

County. Heard in the Supreme Court on 30 August 2016.

Roy Cooper, Attorney General, by Derrick C. Mertz, Special Deputy Attorney
General, for the State-appellant.

Glenn Gerding, Appellate Defender, by Paul M. Green, Assistant Appellate
Defender, for defendant-appellee.

MARTIN, Chief Justice.

The sole issue before us is whether the trial court properly granted defendant’s

motion to suppress evidence. The Court of Appeals affirmed the trial court’s ruling.

We hold that the magistrate in this case had a substantial basis to find that probable

cause existed to issue the challenged search warrant, and we therefore reverse the

decision of the Court of Appeals.

Defendant lived with Sean Whitehead and Jeremy Black, who were half-

brothers, at 4844 Acres Drive in Wilmington, North Carolina. The police stopped a
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Opinion of the Court

car that Black was driving. Whitehead was a passenger. Inside the car, the police

found 8.1 ounces of marijuana and over $1600 in cash. This stop ultimately led to the

issuance of a warrant to search defendant’s home. Based on evidence found there,

defendant was charged with six offenses pertaining to the manufacture, possession,

and sale or delivery of illegal drugs.

Defendant moved to suppress evidence seized during the search of her home,

arguing that the warrant to conduct the search was not supported by probable cause.

After a hearing, the trial court granted defendant’s motion, and the State appealed.

The Court of Appeals affirmed the trial court’s ruling, with one judge dissenting.

State v. Allman, ___ N.C. App. ___, ___, 781 S.E.2d 311, 318 (2016); id. at ___, 781

S.E.2d at 318-20 (Dillon, J., dissenting). The State then filed a notice of appeal with

this Court.

The Fourth Amendment to the United States Constitution protects the people

from “unreasonable searches and seizures.” U.S. Const. amend. IV. Absent exigent

circumstances, the police need a warrant to conduct a search of or seizure in a home,

see Payton v. New York, 445 U.S. 573, 586 (1980), and a warrant may be issued only

on a showing of probable cause, U.S. Const. amend. IV. Article I, Section 20 of the

Constitution of North Carolina likewise prohibits unreasonable searches and seizures

and requires that warrants be issued only on probable cause. See State v. Arrington,

311 N.C. 633, 643, 319 S.E.2d 254, 260-61 (1984).

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Opinion of the Court

The Supreme Court of the United States has adopted the totality of the

circumstances test to determine whether probable cause exists under the Fourth

Amendment. Illinois v. Gates, 462 U.S. 213, 230-31 (1983). This Court has adopted

the same totality of the circumstances test to determine whether probable cause

exists under Article I, Section 20 of the state constitution. See Arrington, 311 N.C. at

643, 319 S.E.2d at 260-61. And because the text of Article I, Section 20 does not

“call[ ] for broader protection than that of the Fourth Amendment,” State v. Miller,

367 N.C. 702, 706, 766 S.E.2d 289, 292 (2014), the probable cause analysis under the

federal and state constitutions is identical.1

In general, “a neutral and detached magistrate,” not an “officer engaged in the

often competitive enterprise of ferreting out crime,” must determine whether

probable cause exists. Gates, 462 U.S. at 240 (quoting Johnson v. United States, 333

U.S. 10, 14 (1948)). To determine whether probable cause exists under the totality of

the circumstances, a magistrate may draw “[r]easonable inferences from the

available observations.” State v. Riggs, 328 N.C. 213, 221, 400 S.E.2d 429, 434 (1991).

A single piece of evidence may not necessarily be conclusive; as long as the pieces fit

1 In State v. Carter, this Court declined to adopt a good faith exception to the state
constitution’s exclusionary rule. Compare State v. Carter, 322 N.C. 709, 724, 370 S.E.2d 553,
562 (1988), with United States v. Leon, 468 U.S. 897, 913 (1984) (adopting a good faith
exception to the Fourth Amendment exclusionary rule). But the holding in Carter, which
concerns the proper remedy for an unreasonable search or seizure, does not affect the scope
of our probable cause analysis, which concerns whether an unreasonable search or seizure
happened in the first place.

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Opinion of the Court

together well and yield a fair probability that a police officer executing the warrant

will find contraband or evidence of a crime at the place to be searched, a magistrate

has probable cause to issue a warrant. See Massachusetts v. Upton, 466 U.S. 727, 733

(1984) (per curiam); see also Gates, 462 U.S. at 238.

Reviewing “courts should not invalidate warrant[s] by interpreting affidavit[s]

in a hypertechnical, rather than a commonsense, manner.” Riggs, 328 N.C. at 222,

400 S.E.2d at 434-35 (alterations in original) (quoting Gates, 462 U.S. at 236).

Because “ ‘[a] grudging or negative attitude by reviewing courts toward warrants’ is

inconsistent with the Fourth Amendment’s strong preference for searches conducted

pursuant to a warrant,” a reviewing court should not subject the issuing magistrate’s

probable cause determination to de novo review. Gates, 462 U.S. at 236 (citation

omitted) (quoting United States v. Ventresca, 380 U.S. 102, 108 (1965)). The

magistrate’s probable cause determination should instead be given “great deference.”

Id. (quoting Spinelli v. United States, 393 U.S. 410, 419 (1969)). In practice, the

reviewing court gives deference to the magistrate’s determination by “ensur[ing] that

the magistrate had a substantial basis for . . . conclud[ing] that probable cause

existed.” Arrington, 311 N.C. at 638, 319 S.E.2d at 258 (emphasis added) (second and

third alterations in original) (quoting Gates, 462 U.S. at 238-239).

Under North Carolina law, an application for a search warrant “must be

supported by one or more affidavits particularly setting forth the facts and

circumstances establishing probable cause to believe that the items [subject to

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Opinion of the Court

seizure] are in the place[ ] . . . to be searched.” N.C.G.S. § 15A-244(3) (2015). A

supporting affidavit is sufficient when it gives the magistrate “reasonable cause to

believe that the search will reveal the presence of the [items] sought on the premises

described in the [warrant] application,” and that those items “will aid in the

apprehension or conviction of the offender.” State v. Bright, 301 N.C. 243, 249, 271

S.E.2d 368, 372 (1980). But a magistrate cannot lawfully issue a search warrant

based on an affidavit that is “purely conclusory” and that does not state the

underlying circumstances allegedly giving rise to probable cause. Id.

The affidavit in this case, which was submitted by Detective Anthony E. Bacon

Jr. of the New Hanover County Sheriff’s Office, contained all of the following

allegations:

Agent Joe Cherry of the Brunswick County Sheriff’s Office stopped a car that

Jeremy Black was driving. Black’s half-brother Sean Whitehead was a passenger in

the car. Agent Cherry used a K-9 unit to conduct an exterior sniff of the car, and the

dog “alerted on the vehicle for illegal controlled substances.” Agent Cherry then

searched the car and found 8.1 ounces of marijuana packaged in a Ziploc bag, which

was inside of a vacuum sealed bag, which in turn was inside of a manila envelope.

He also found over $1600 in cash.

Detective Bacon checked both Black’s and Whitehead’s criminal histories. He

discovered that Whitehead had previously been charged on several occasions with

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Opinion of the Court

“crimes relating to the illegal sale and distribution of marijuana” and had been

convicted of possession with the intent to sell and deliver marijuana. Detective Bacon

also discovered that Black had pleaded guilty to first-degree burglary and had been

charged with cocaine distribution and possession of marijuana. During the vehicle

stop, Whitehead maintained that he and Black lived at 30 Twin Oaks Drive in Castle

Hayne, North Carolina. Whitehead said that he and Black had been on their way

back there before they were stopped.

On the same day as the vehicle stop, Detective Bacon went to 30 Twin Oaks

Drive. When he got there, he discovered that neither half-brother lived at that

address but that Whitehead’s and Black’s mother, Elsie Black, did. Ms. Black told

Detective Bacon that the two men lived at 4844 Acres Drive in Wilmington and had

not lived at 30 Twin Oaks Drive for about three years.2 She described the Acres Drive

property as a small one-story residence that had “a big, tall privacy fence in the

backyard” and said that “there should be an old red truck and an old white truck at

the house.” At that point, another detective went to 4844 Acres Drive. The property

matched the description given by Ms. Black, and one of the two trucks outside of the

house was registered to Jeremy Black.

In addition to stating all of these allegations, the affidavit recited Detective

Bacon’s extensive training in law enforcement and extensive experience with drug

2Here and elsewhere, the affidavit mistakenly listed the Acres Drive address as 4814,
not 4844.

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Opinion of the Court

investigations and trials. The affidavit also stated, based on Detective Bacon’s

training and experience, that drug dealers typically keep evidence of drug dealing at

their homes, including but not limited to the drugs themselves, records of drug

dealing activities, tools and materials used to weigh and package drugs, large

amounts of cash, and expensive things purchased with drug money.

Supported by his affidavit, Detective Bacon applied for a warrant to search the

property at 4844 Acres Drive, and the magistrate issued it.3 When detectives

searched the Acres Drive house (several hours after Detective Bacon went to 30 Twin

Oaks Drive), they found varying amounts of marijuana throughout the living room

and a shotgun in defendant’s bedroom. According to a police inventory sheet, the

detectives also found, among other things, digital scales, plastic packaging material,

sandwich bags, smoking pipes, and rolling papers in the house. In addition, the

detectives discovered a wall safe that contained syringes filled with a liquid later

identified as psilocybin mushrooms, a controlled substance.

When reviewing a trial court’s ruling on a motion to suppress, we analyze

whether the trial court’s “underlying findings of fact are supported by competent

evidence . . . and whether those factual findings in turn support the [trial court’s]

ultimate conclusions of law.” State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619

3 Because the warrant replicated the error in the affidavit, it listed the property’s
address as 4814 Acres Drive. Defendant does not argue that this error makes the warrant
invalid.

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Opinion of the Court

(1982). The trial court found virtually all of the facts that we have just recounted,

and its findings were supported by competent evidence—namely, by the affidavit

itself.

But the trial court erred in its conclusion of law that the facts alleged in

Detective Bacon’s affidavit were insufficient to support a finding of probable cause to

issue the search warrant. Based on the quantity of marijuana and the amount of

cash found in the car, the fact that the marijuana appeared to be packaged for sale,

and Whitehead’s and Black’s criminal histories, it was reasonable for the magistrate

to infer that the half-brothers were drug dealers. Based on the mother’s statement

that Whitehead and Black really lived at 4844 Acres Drive, the fact that her

description of 4844 Acres Drive matched the appearance of the actual premises, and

the fact that one of the trucks there was registered to Black, it was reasonable for the

magistrate to infer that Whitehead and Black lived there. And based on the insight

from Detective Bacon’s training and experience that evidence of drug dealing is likely

to be found at a drug dealer’s home, and the fact that Whitehead lied about where he

and Black lived, it was reasonable for the magistrate to infer that there could be

evidence of drug dealing at 4844 Acres Drive. These are just the sort of common-

sense inferences that a magistrate is permitted to make when determining whether

probable cause exists.

We acknowledge that nothing in Detective Bacon’s affidavit directly linked

defendant’s home with evidence of drug dealing. But federal circuit courts have

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Opinion of the Court

addressed this precise situation and held that a suspected drug dealer’s lie about his

address, in combination with other evidence of drug dealing, can give rise to probable

cause to search his home. In United States v. Whitner, for example, the Third Circuit

noted that “direct evidence linking the crime to the location to be searched is not

required to support a search warrant,” 219 F.3d 289, 297 (3d Cir. 2000), and that a

suspected drug dealer’s lie to federal agents about where he lived was an “important

piece of evidence linking the crime to” the suspect’s apartment, id. at 298. “[W]hen

combined with . . . other information” from the attesting officer’s affidavit, the Third

Circuit ruled, the suspect’s lie “logically suggests that [he] was storing some evidence

of illegal activity at [his] apartment which he did not want the agents to discover.”

Id. at 299. And in United States v. Caicedo, the Sixth Circuit held that probable cause

existed to search a suspected drug dealer’s home because, among other reasons, the

suspect “had lied about his address in statements” that he made after his arrest. 85

F.3d 1184, 1193 (6th Cir. 1996).

The Court of Appeals maintained that the facts here were “materially

indistinguishable” from those in State v. Campbell. See Allman, ___ N.C. App. at ___,

781 S.E.2d at 316. In Campbell, we held that the facts alleged in the affidavit in that

case were too conclusory to support a finding of probable cause to search the home of

suspected drug dealers. State v. Campbell, 282 N.C. 125, 129-32, 191 S.E.2d 752,

756-57 (1972). But the facts of Campbell can be distinguished from the facts here in

two ways. First, in contrast to the affidavit supporting the warrant in this case, there

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Opinion of the Court

is no indication that the affidavit in Campbell mentioned any insights from the

affiant’s training and experience, or used them to link evidence of drug dealing with

the home of the suspected dealers. See id. at 130-31, 191 S.E.2d at 756; see also State

v. McKinney, 368 N.C. 161, 164, 775 S.E.2d 821, 825 (2015) (stating that evidence

supporting a warrant application is “viewed from the perspective of a police officer

with the affiant’s training and experience”). Second, while a suspect in this case lied

to Agent Cherry about his true address, nothing in the Campbell opinion indicates

that any of the subjects of that search lied to the authorities about their home

address. So Campbell does not alter our conclusion.

Defendant has argued that N.C.G.S. § 15A-244(3) provides an independent

basis for granting her motion to suppress. As we have noted above, subsection 15A-

244(3) specifies that a warrant application must be supported by at least one affidavit

that states with particularity the facts and circumstances that establish probable

cause. Although defendant suggests that this provision limits the scope of what

qualifies as probable cause, she is mistaken. The provision does not change the

probable cause standard at all; it just specifies the type of evidence that the police

have to produce to meet the standard.

In sum, under the totality of the circumstances, the magistrate in this case had

a substantial basis to conclude that probable cause existed to search defendant’s

home. We therefore reverse the decision of the Court of Appeals and remand this

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Opinion of the Court

case to the Court of Appeals for further remand to the trial court for additional

proceedings not inconsistent with this opinion.

REVERSED AND REMANDED.

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